PEOPLE v. CRUZ
Filed 7/24/08 (this opn. should follow S148029, also filed 7/24/08)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S042224
v. )
) Sonoma County
TOMAS VERANO CRUZ, ) Super. Ct. No. 21687
)
Defendant and Appellant. )
)
Story Continued From Part I ..
Defendants mother also testified in his behalf. She recalled that when defendant was 14 years old, he was taken away in handcuffs by the Mexican police and held for several days. When he was returned home, his head was shaved and he had been badly beaten. Defendants mother testified further that the people of Antiguo Taumin are generally afraid of their local police.
Defendants sister, Laticia, age 17, also traveled from Mexico to testify in his behalf. She testified defendant got along very well with everyone in Mexico, that she loved him very much, and that she wrote to him and relied on him for advice. She believed defendant to be a good father and husband, who wrote to his mother, his wife, and to her.
Defendants brother Joaquin Cruz testified in his behalf. He related that two of their siblings had diedone in infancy, the other when hit by a car at age eight. Defendant had been in the United States for 3 years prior to this incident, had lived in the Fall RiverMcArthur area for most of that time, and lived with his brother at the Sanchez residence for most of the year prior to the murder. Cruz testified that by 1991, defendant had obtained his working papers and was a legal resident. Cruz knew defendant was in jail during the summer of 1991, but did not think he drank much until the day of the murder.
Dr. Jose J. LaCalle, who testified he was a cross-cultural psychologist working with the Hispanic and Anglo-Saxon cultures with specialties in clinical and forensic psychology, testified in defendants behalf. He visited with defendant for a total of 10 and one-half hours in preparation for his testimony, and also traveled to defendants hometown in Mexico to interview family members. He administered several standard tests, finding no evidence that defendant suffered from any neurological infirmities. He found defendant to have an IQ score of 81 on the American test. Dr. LaCalle administered the Minnesota Multiphasic Personality Inventory (MMPI) test and found no evidence of gross psychopathology. He administered the Sacks Sentence Completion test which reflected that defendant was very candid and spontaneous. He also noted no major personality disorders in defendant, but detected avoidant personality traits that indicated he does not socialize well.
Dr. LaCalle further described defendant as passive-aggressive and not a person [who] usually involves himself in acting aggression. He is more likely to engage in reactive aggression. Overall, Dr. LaCalle found defendants personality traits to be self-defeating. He further opined that defendant suffered from chronic alcohol dependency.
Trial counsel asked Dr. LaCalle to furnish his professional opinion on the following hypothetical scenario: Assuming the hypothetical question of a twenty-three year-old man of Mexican origin, who has been brutalized by the police in Mexico at an early age, and who was intoxicated at the time of his arrest and handled roughly by the arresting officer and finds a gun and uses it. What is your professional opinion about why he reacted as he did in shooting the officer? Dr. LaCalle opined that defendant made a primal response, a reaction exhibiting anger and hostility, not to the arresting officer specifically, but to the circumstances of police brutality having been suffered over the years.
On cross-examination, Dr. LaCalle conceded that only some of his conclusions were reflected in the report he prepared for trial. He did not formulate an opinion as to whether defendant knew right from wrong when he killed Deputy Perrigo. Dr. LaCalle further acknowledged that the profile results of the MMPI test administered to defendant reflected he has little respect for authority and believes that a person should get away with everything he can. Dr. LaCalle felt such was a valid conclusion and consistent with his observations regarding defendants antisocial personality traits.
II. Discussion
A. Pretrial/Jury Selection Issues
During jury selection defendant claimed the prosecution twice exercised its peremptory challenges to improperly excuse Hispanic prospective jurors (Nos. 1226 and 1419) on the sole basis of group bias, in violation of the federal and state Constitutions. (See Batson v. Kentucky (1986) 476 U.S. 79, 84-89 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) Hearings were conducted and the motions denied, and the claims are here renewed on appeal. We find no cognizable error.
Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Recently, the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendants are made. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.) (People v. Guerra (2006) 37 Cal.4th 1067, 1100 (Guerra).)
In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, the trial court must make a sincere and reasoned attempt to evaluate the prosecutors explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . . [Citation.] (People v. Reynoso (2003) 31 Cal.4th 903, 919.) . . . All that matters is that the prosecutors reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. (Id. at p. 924.) A reason that makes no sense is nonetheless sincere and legitimate as long as it does not deny equal protection. (Ibid.) (Guerra, supra, 37 Cal.4th at pp. 1100-1101.)
a. Prospective Juror No. 1226
With regard to Prospective Juror No. 1226, the trial court reviewed her responses to voir dire questioning and determined defendant did not make out a prima facie showing that her peremptory excusal was improperly based on group bias.[1] We need not, however, consider the propriety of the trial courts ruling that no prima facie case had been made out with regard to Prospective Juror No. 1226, as the record reflects she was not of Hispanic origin in the first instance, but rather was White, and for that reason she was not a member of the cognizable group identified by defendant within the meaning of Batson, supra, 476 U.S. 79, or Wheeler, supra, 22 Cal.3d 258. Defense counsel acknowledged as much on the record, arguing [she] is obviously a Caucasian, but she was married to a Spanish Mexican-American. Counsel then made clear why he believed her peremptory excusal was nonetheless subject to a Batson-Wheeler challenge, Hispanic surnamed [as] well constitutes a cognizable group under Wheeler.
Defense counsels argument overlooked an important subtlety regarding this point of law. As we explained in Gutierrez, supra, 28 Cal.4th 1083, with regard to the peremptory excusal of a similarly-situated prospective juror, April P. is not of Hispanic origin; she apparently acquired her Hispanic surname through marriage. Defendant argued below that this counts, and he reasserts that position here. He is wrong. True, in People v. Trevino (1985) 39 Cal.3d 667, 684 (disapproved on other grounds in [People v.] Johnson [(1989)] 47 Cal.3d [1194,] 1219-1221) we held that Spanish surnamed sufficiently describes the cognizable class Hispanic under Wheeler but only where no one knows at the time of the challenge whether the Spanish-surnamed prospective juror is Hispanic. (People v. Trevino, supra, 39 Cal.3d at p. 686.) Here, April P. twice indicated on her juror questionnaire that she was White, and when the trial court asked her for the record whether she was Hispanic, she replied No. Although the record reflects ample race-neutral reasons for the challenge to April P., we need not discuss them here, as her excusal was not based on race within the meaning of defendants Wheeler challenge. (Gutierrez, supra, 28 Cal.4th at p. 1123.)
Although the record here is less than clear as to whether the trial court perceived that Prospective Juror No. 1226 was not herself of Hispanic origin when, several days after the motion was taken under submission, the court proceeded to reach, address and reject the merits of defendants Batson-Wheeler claim with regard to her excusal, we find that circumstance dispositive of the claim on appeal.
b. Prospective Juror No. 1419
Prospective Juror No. 1419 was Hispanic. The trial court found that defendant made out a prima facie case of improper excusal of this prospective juror, noting on the record, I have reviewed the transcript, in fact, several times. There is not a basis apparent to me from the face of the transcript for the excuse of that juror as was the case with [prospective juror] 1226. [] Ill make the following findings. First, that that juror [1419] is a member of a cognizable class; and second, that there is a strong likelihood that that exclusion [was] based on group association rather than personal bias. At this point, the prosecution will have an opportunity of justifying the excuse.[2]
Although the trial court made a goodfaith determination that a prima facie case of improper excusal for group bias had been shown with regard to Prospective Juror No. 1419, the prosecutor thereafter furnished ample reasons explaining why the peremptory excusal of the prospective juror was not motivated by discriminatory intent.
Among the many reasons given by the prosecutor for the excusal of prospective juror 1419 was that he was only 20 years old and perhaps one of the youngest, or the youngest prospective jurors under consideration, and may not be in the mainstream and that experienced in life; that he had long hair, Fu Manchu type facial hair, had come to court in a long, unbuttoned flannel shirt, thereafter arrived at the peremptory challenge hearing in a plain white T-shirt, and appeared to be one of the most poorly dressed individuals in the courtroom; that his stated goal in life, to open up a small comic book store, arguably showed a lack of life experiences; that his repeated belief that the evidence would have to be strong for him to impose death, his stated feeling that at times the death penalty was used too much, and the fact that he indicated some hesitation about imposing the death penalty for a cop killer, all created concerns for the prosecution; that he failed to answer questions Nos. 95 and 96 on the written jury questionnaire pertaining to his feelings about criminal defense attorneys, prosecutors, and police; that in responding to question No. 99, which asked, Do you feel that a police officers testimony is more truthful/accurate that that of a civilian?, he wrote, police officers are human, and they can lie too; that he gave the impression he had some sympathy toward those individuals who became intoxicated; and that the prosecutor felt he did not establish a very good rapport with the young prospective juror.
Defendant nevertheless argues we should undertake a point-by-point comparative analysis of Prospective Juror No. 1419s responses to the jury questionnaire and voir dire inquiries with those of the prospective jurors who were ultimately seated on his jury. He argues, for the first time on appeal, that such a comparative juror analysis serves to impeach the credibility of the prosecutors stated reasons for excusing this prospective juror and establishes the prosecutors discriminatory intent behind the excusal of the juror.
Recently, in People v. Lenix (July 24, 2008, S148029) __Cal.4th __ (Lenix)), this court held that evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons. (Id. at p. __ [p. 22].) We reviewed two recent United States Supreme Court decisions in which the high court conducted comparative juror analysis for the first time on appeal Snyder v. Louisiana (2008) __ U.S. __, 128 S.Ct. 1203 (Snyder), and Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El) concluding those decisions stand for the unremarkable principle that reviewing courts must consider all evidence bearing on the trial courts factual finding regarding discriminatory intent. (Lenix, supra, __ Cal.4th at p. __ [p. 1].)
We went on to observe in Lenix, supra, __Cal.4th __, that both Snyder and Miller-L demonstrate that comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination. (Id. at p. __ [p. 21].) We explained that although a written transcript may reflect that two or more prospective jurors gave the same answers to a question on voir dire, it cannot convey the different ways in which those answers were given. Yet those differences may legitimately impact the prosecutors decision to strike or retain the prospective juror. When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers. (Lenix, at p. __ [p. 23].) Observing that [v]oir dire is a process of risk assessment (id. at p. __ [p. 24]), we further explained that, [t]wo panelists [i.e., prospective jurors] might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial courts factual finding. (Lenix, at p. __ [p. 24].)
Both high court decisions in Snyder and Miller-L ultimately reiterate[] that reviewing courts must accord significant deference to the factual findings on the question of discriminatory intent. (Snyder, supra, 128 S.Ct. at pp. 1207-1208; Miller-El[], supra, 545 U.S. at p. 240 . . . .) (Lenix, supra, __ Cal.4th at p. __ [p. 27].)
Consistent with our holding in Lenix, supra, __ Cal.4th at p. __, we have undertaken a comparative juror analysis of the jury questionnaire and voir dire responses of other prospective jurors identified by defendant[3]as supportive of his claim that Prospective Juror No. 1419 was excused with discriminatory intent. Viewing such comparative evidence in light of the totality of evidence relevant on the claim, we conclude it does not demonstrate purposeful discrimination.
Question No. 66 of the jury questionnaire asked, What are your opinions and feelings about how the criminal justice system works? Prospective Juror No. 1419 answered, I think it has gotten better over the years [and] I would have to say I like it so far. The prosecutor argued Prospective Juror No. 1419 was probably one of maybe two or three individuals out of the entire couple hundred we have seen for both juries that felt the criminal justice system was good or getting better. The prosecutor further suggested the jurors response was not in the mainstream of thinking. He attributed this to the prospective jurors being an individual who does not have a tremendous amount of experience and contact in society and with this criminal justice system, and added, This is probably most attributable to the fact that he is only 20 years old. Hes the youngest or one of the youngest members that we saw. And his goals in life as a career kind of indicates his youthfulness. . . . [H]e indicates that his goals in the future are to own a business of my own business of comic book store, which again indicates somebody who may not be in the mainstream and that experienced in life. And that created a tremendous amount of concern in determining whether or not we should keep this individual.
Defendant counters that the record reflects that a number of seated jurors essentially agreed with juror 1419s assessment of the criminal justice system. Seated Juror No. 1091 thought the system works well but with some faults. Seated Juror No. 1107 felt that in most cases the system was fair. In response to the questionnaire, Seated Juror No. 1444 opined that the system works. Seated Juror No. 1475 responded, the basic premise is great. Seated Juror No. 1663 responded, All in all I feel it works well. Seated Juror No. 2428 responded, the best system I have seen yet. Seated Alternate Juror No. 2501 believed the system works fairly well. And Seated Alternate Juror No. 1619 felt theyre doing a good job. With regard to this inquiry of the prospective jurors, the record does indeed tend to reflect that Prospective Juror No. 1419s view that the criminal justice system has gotten better over the years, if viewed in isolation, was not out of the mainstream of thinking. But clearly the prosecutor was not viewing the jurors response in isolation; rather, he was viewing it while mindful of the prospective jurors very young age in relation to all the other prospective jurors on the panel. The critical determination here is not whether the prosecutors reasoning was entirely accurate, but rather whether his given reasons were credible and sincere, as opposed to a sham intended to mask his true intent to discriminate by striking a Hispanic prospective juror from defendants jury.
Question No. 95 asked for the prospective jurors opinion of criminal defense lawyers and prosecutors; question No. 96 asked, What are your views of the police in general? Prospective Juror No. 1419 failed to respond to either question, which the prosecutor indicated as another of his concerns with the prospective juror. Defendant points out that two seated jurors indicated no opinion to question No. 95, another wrote Dont no [sic], and another responded N/A. Of course the failure to respond to a question altogether is arguably of greater concern than a forthright response of no opinion or Dont know.
Question No. 99 asked the prospective jurors, Do you feel that a police officers testimony is more truthful/accurate than that of a civilian? Prospective Juror No. 1419 responded sometimes, adding, police officers are human they can lie to [sic]. The prosecutor argued that the fact that [Prospective Juror No. 1419] pointed out that [police officers] can lie, too, did create some concern given his failure to answer question 96 [What are your views of the police in general?]. Defendant points out that eight of the seated jurors answered question No. 99 with either no or not necessarily. But expressing the opinion that a police officers testimony is not more truthful/accurate than that of a civilian is qualitatively different than the affirmative response, they can lie too.
Question No. 121 asked that if the prospective juror had strong feelings concerning the death penalty, then are those feelings so strong that they would interfere with your ability to be objective during the guilt phase of the trial? Prospective Juror No. 1419 had answered a preceding question by indicating he did not believe he had strong feelings concerning the death penalty. He left the answer to question No. 121 blank. But then, in response to question No. 122 if you are strongly opposed to the death penalty, would you be more inclined to find the defendants not guilty? he answered no. This too concerned the prosecutor, who explained, the Court I believe had noted this at one point on the record, that the answer to 121 would not need to be given if you had strong feelings basically in favor of the death penalty, but you would need to answer question 122 if you had strong feelings against. He failed to answer 121 and did in fact answer 122, again suggesting some feelings about the death penalty [that] were not acceptable to the People. Defendant in turn points out that [t]he record shows that seated juror 1390 did not answer either question 121 or 122, but this circumstance sheds little light on Prospective Juror No. 1419s different and ambiguous responses to the series of questions.
Our review of the record taken as a whole demonstrates that substantial evidence supports the trial courts finding that the prosecutors peremptory excusal of Prospective Jurors Nos. 1226 and 1419 were not motivated by discriminatory intent. (People v. Bonilla (2007) 41 Cal.4th 313, 341-342.) Defendants reliance on comparative juror analysis does not undermine this conclusion. We find that defendants Batson-Wheeler motion was properly rejected below.
2. Death Qualification of Jurors
Defendant contends he was denied his constitutional right to an impartial jury because prospective jurors who were death prone, and should have been excused for cause, were erroneously permitted to remain on the jury, and because prospective jurors who were life prone, and should have been permitted to remain on the jury, were erroneously excluded for cause. Both contentions are without merit.
A trial court may discharge a juror whose views on the death penalty would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Rodrigues (1994) 8 Cal.4th 1060, 1140 (Rodrigues).) The high court has explained that if a juror gives ambiguous or conflicting answers to inquiries about his or her views on the death penalty, the trial court is in the best position to evaluate those responses, and its determination as to the jurors actual state of mind is binding on appeal. (Wainwright v. Witt, supra, 469 U.S. at pp. 428-429; see People v. Phillips (2000) 22 Cal.4th 226, 234; Rodrigues, supra, 8 Cal.4th at p. 1147.) Any ambiguities in the record are to be resolved in favor of the trial courts determinations, and the reviewing court determines only whether the trial courts findings are fairly supported by the record. (People v. Crittenden (1994) 9 Cal.4th 83, 122; People v. Howard (1988) 44 Cal.3d 375, 417-428.)
a. Death Prone Prospective Jurors
Defendant contends 11 prospective jurors were death prone, should have been excused for cause, and were wrongly retained in the jury pool. He acknowledges, however, that he removed seven of these 11 jurors with his own peremptory challenges, and therefore complains of only four of them (Prospective Jurors Nos. 1349, 1323, 1622, and 1626) who remained on the panel after he exercised his final peremptory challenge. However, although these four prospective jurors may have remained on the panel for some time, none of them actually wound up selected to serve on defendants petit jury. Because these prospective jurors did not sit on defendants jury, [d]efendant could not possibly have suffered prejudice as a result of the courts refusal to excuse them at his request. (People v. Hillhouse (2002) 27 Cal.4th 469, 487-488, quoting People v. Millwee (1998) 18 Cal.4th 96, 146; People v. Weaver (2001) 26 Cal.4th 876, 913; see also Ross v. Oklahoma (1988) 487 U.S. 81, 86.) Accordingly, we need not resolve the substance of defendants argument because the record reflects no possibility of prejudice. (People v. Cox (1991) 53 Cal.3d 618, 648.)
b. Life Prone Prospective Jurors
Defendant contends Prospective Jurors Nos. 1393[4]and 1158 were wrongfully excused from jury service by the trial court after expressing anti-death-penalty sentiments. We do not agree.
A prospective juror can be properly excused for cause if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate. (People v. Barnett (1998) 17 Cal.4th 1044, 1114; Rodrigues, supra, 8 Cal.4th at p. 1146.) There is no requirement that the prospective jurors bias against the death penalty be proved with unmistakable clarity. (Wainwright v. Witt, supra, 469 U.S. at p. 424.) Rather, the trial judge need only determine that the prospective juror would be unable to faithfully and impartially apply the law in the case before him or her. (Rodrigues, supra, 8 Cal.4th at p. 1147; People v. Hill (1993) 3 Cal.4th 959, 1003.)
Prospective Juror No. 1393 told the court he would have difficulty coming up with the death penalty, especially for the death penalty. He expressed uncertainty as to whether he could make the decision between a life and a death sentence. When defense counsel asked him, And are you telling us that if if the aggravating factors, the factors that make this a more heinous crime, outweigh the significantly outweigh any kind of mitigating factors that theres in all circumstances you could not impose the death penalty or vote for the death penalty? He replied, Yeah. I think thats right. At that point the prosecutor challenged Prospective Juror No. 1393 for cause, and the court excused him.
Prospective Juror No. 1158 repeatedly stated she could not vote to impose the death penalty. She indicated she was not comfortable making the judgment on someones life. She said it would bother her to vote for death because she did not feel that I have a place to judge on someones life. When asked if she could vote for death if the jury determined the aggravating factors substantially outweighed the mitigating factors, she replied, No. She was then excused for cause.
Manifestly, neither of these two prospective jurors was improperly excused for cause.
Story Continue As Part III ..
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[1] The trial court made the following findings on the record: With regard to juror 1226, her questioning [from her voir dire transcript] indicated . . . that her son had been in trouble previously with the criminal justice system. A feeling that she had that sometimes that system is not fair and a sense that the police were from time to time opinionated about situations, were not willing to consider other possibilities and listen to explanations. Her feeling about the criminal justice system causes me to make a finding that a prima facie case as to her was not established and that the challenge of that particular juror was based on a personal bias rather than a group bias, and since no prima facie showing was made no justification for her excus[al] is required.
The trial courts observations are borne out by Prospective Juror No. 1226s voir dire transcript. When asked if the criminal justice system was fair, she responded, In some instances. Theres time its not. She then complained about how the police had treated her son, stating, they have their opinion, and they dont want to hear what you have to say. These responses constituted ample, nondiscriminatory bases on which to peremptorily excuse her. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1123 (Gutierrez) [prospective jurors fathers incarceration a valid race-neutral reason to excuse him]; People v. Garceau (1993) 6 Cal.4th 140, 172 [prospective juror whose family members had run afoul of the law properly excused]; People v. Cummings (1993) 4 Cal.4th 1233, 1282 [prospective juror whose brother was convicted of a crime properly excused].)
We note the record does not affirmatively reflect whether the trial court applied the proper standard an evidentiary showing sufficient to permit the trial judge to draw an inference of discrimination (see People v. Johnson (2006) 38 Cal.4th 1096, 1098-1099 (Johnson) in determining that defendant did not make out a prima facie showing that the excusal of Prospective Juror No. 1226 was improperly based on discriminatory group bias. We are not, however, relying on the prosecutors stated reasons for excusing Prospective Juror No. 1226 as a basis for rejecting defendants challenge to her peremptory excusal. Instead, as explained below, we rely on the fact that the record reflects she was not a member of the relevant cognizable class (Hispanic) to begin with.
[2] With regard to Prospective Juror No. 1419, it appears the trial court may have applied an overly stringent strong likelihood standard in determining that defendant made a prima facie showing of discriminatory intent with regard to the excusal of this juror. (See Johnson, supra, 38 Cal.4th at pp. 1098-1099.) It matters not, of course, since the court found a prima facie showing had been made, and thus defendant suffered no prejudice if the court indeed utilized a higher standard.
[3] The reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment. (Lenix, supra, __ Cal.4th at p. __ [p. 24].)
[4] Prospective Juror No. 1393 is the prospective juror who was questioned and challenged for cause by the prosecution at the page in the record cited by defendant. Although defendant refers to Prospective Juror No. 1476 in his argument, we presume that numerical reference to be in error, as that prospective juror was passed for cause by both the prosecution and the defense.
